Maureen Clare Murphy
The Electronic Intifada / August 1, 2023
Anyone supposing that the newfound enthusiasm in Washington for the International Criminal Court would open the door for justice for Palestinians ought not to hold their breath.
A closer look at US policy shows that the imperialist power only supports justice for victims depending on the identity of the perpetrators of alleged international crimes, and whether doing so would align with Washington’s interests.
President Joe Biden ordered the US government to share “evidence of Russian war crimes in Ukraine with the International Criminal Court,” The New York Times reported last week.
Biden had come under pressure from lawmakers to provide intelligence to the court.
The Pentagon opposes the policy, maintaining the previous position of the US “that the court should not exercise jurisdiction over citizens from a country that is not a party to the treaty that created it,” as The Times reports.
With Biden effectively recognizing the ICC’s territorial jurisdiction in Ukraine, the US is removing its stated principal objection to the court investigating war crimes in Palestine.
But this does not mean that the US will change its tune and support efforts to hold Israel accountable for war crimes.
Neither the US or Russia are state parties to the ICC. Ukraine is not a state party but has “twice exercised its prerogatives” to accept court jurisdiction on its territory and the ICC opened an investigation in the country in March 2022.
One year earlier, the court launched an investigation into international crimes in the West Bank and Gaza Strip.
Palestine is a state party to the court but Israel is not. The court’s jurisdiction extends to nationals of countries which have not joined the Rome Statute, its founding treaty, when a citizen of a non-member country commits international crimes in the territory of a member state.
Successive administrations in Washington have rejected this principle, as it would leave US personnel liable to prosecution by the court for alleged crimes that took place in the territory of ICC member states, such as Afghanistan, where the court has an open investigation.
The US has had a rocky relationship with the ICC, which was established in 2002.
Washington treated the court as a threat during the Bush administration, which “pressured governments around the world to enter into bilateral agreements requiring them not to surrender US nationals to the ICC,” as Human Rights Watch recounts.
In 2002, the US enacted legislation informally known as the Hague Invasion Act that permits the use of military force to free its citizens, or citizens of a US-allied country, held by or on behalf of the court.
The Obama administration took a more circumspect stance toward the court, adopting a “policy of case-by-case support for ICC investigations and prosecutions,” according to Todd Buchwald, a lawyer who has served in various US government positions.
President Donald Trump resumed the hostile posture of the Bush years, with his national security adviser John Bolton effectively declaring war on the ICC during a 2018 speech at the Federalist Society in Washington.
In 2019, the Trump administration banned ICC personnel involved in the court’s years-long preliminary examination of the situation in Afghanistan – the first time the court probed crimes allegedly committed by US forces – from traveling to the US.
In March 2020, an ICC appeals chamber authorized Fatou Bensouda, then chief prosecutor, to open an investigation in Afghanistan, which could include alleged crimes committed by US military and intelligence personnel, as well as Afghan National Security Forces.
Months later, the US issued an executive order imposing economic sanctions on the court’s chief prosecutor and another court official.
The Trump administration’s punitive measures were also aimed at undermining the ICC’s Palestine investigation.
Biden revoked Trump’s executive order but his administration has, as Secretary of State Antony Blinken said in April 2021, maintained “our longstanding objection to the court’s efforts to assert jurisdiction over personnel of non-states parties such as the United States and Israel.”
The administration in Washington has said that it opposes an ICC probe into the killing of Shireen Abu Akleh, a US citizen and Al-Jazeera correspondent who was killed by an Israeli army sniper while covering a raid in the occupied West Bank.
Washington let off the hook
Karim Khan, a UK national whose term as ICC chief prosecutor began in June 2021, announced later that year that he decided to “’deprioritize’ the investigation into American forces, and focus instead on Afghanistan’s new rulers and the rival Islamic State in Khorasan Province,” as Al-Jazeera reported at the time.
Khan pointed to the “limited resources available to my office relative to the scale and nature of crimes” within its jurisdiction worldwide. He added that a case against the Taliban and Islamic State could be “proved beyond reasonable doubt in the courtroom” – suggesting that this was low-hanging fruit, unlike prosecuting US personnel.
Whether the decision was political or pragmatic, or a mix of both, it left the world’s sole superpower off of the hook.
Shahrzad Akbar, the former chair of Afghanistan’s Independent Human Rights Commission, told The Intercept that Khan’s decision “reinforces the perception that these institutions set up in the West and by the West are just instruments for the West’s political agenda.”
Khan’s apparent sidelining of the Palestine investigation and Western powers’ sudden enthusiasm for the court only galvanize that long held perception.
The US championing international justice for people in Ukraine, on the one hand, while pressuring the Palestinian Authority to stop pursuing war crimes trials at the ICC, on the other, puts the double-standards into sharp contrast.
Congress recently revised an amendment to allow for assistance to the ICC “to assist with investigations and prosecutions of foreign nationals related to the Situation in Ukraine.”
Meanwhile, since 2015, the US has conditioned aid to the Palestinian Authority on the latter not initiating or actively supporting ICC activity “that subjects Israeli nationals to an investigation for alleged crimes against Palestinians.”
The statutory limitation is both heavy handed and seemingly in contradiction to the interests of the US, which is very happy for the Palestinian Authority to serve as a policing arm of the Israeli occupation.
A government funding bill approved by a Senate committee in July includes a provision that the US president “shall provide information” to the ICC’s Ukraine investigation.
Whereas US law previously blocked federal appropriations for the ICC, the bill authorizes $6 million to support the court and $5 million for the Trust Fund for Victims of international crimes.
The bill echoes the Obama-era language from previous appropriation acts conditioning the some $4 billion in foreign assistance discretionary funds available for the Palestinian Authority on not pursuing war crimes investigations at the ICC.
The proposed legislation also prohibits that funding from going to the PA if “the Palestinians obtain the same standing as member states or full membership as a state in the United Nations or any specialized agency thereof” independent of a bilateral agreement with Israel.
These glaring double standards make it clear that US intentions regarding the ICC are more political than principled.
Ahmed Abofoul, an international lawyer working with Al-Haq, a Palestinian human rights group engaged with the ICC’s investigation in Palestine, told The Electronic Intifada that “the US cannot expect to be taken seriously … when its support to international justice and the ICC is evidently selective and motivated by its political agenda.”
“If the US is genuine about international justice and its support of the ICC, it should support it regardless of the nationality of the perpetrator,” Abofoul added.
“The US must understand that the ICC is not a tool,” he said. The court “represents humanity’s collective conscience saying never again to atrocity crimes regardless of the perpetrators and promising justice, without fear or favor, for all victims of such crimes.”
The unequal upholding of international law was recently condemned by several independent UN human rights experts.
They noted that the large majority of UN member states “unequivocally condemned Russia’s invasion of Ukraine and its annexation of Ukraine’s eastern parts as an act of aggression.”
States imposed sanctions on Russia, they said, “to encourage a cessation of this violation of international law” (though the sanctions were imposed by a minority of countries and outside the framework of the UN).
“By contrast, Israel’s annexation of the occupied Palestinian territory is obfuscated by political rhetoric, debates and negotiations,” the experts said.
The same double standard tarnishes the reputations of the international institutions that supposedly uphold international law.
By treating the ICC as a tool to achieve its own ends, the US is undermining the credibility and independence of the court.
Kjell Anderson, an interdisciplinary scholar and author of Perpetrating Genocide, pointed out that “ad hoc and conditional funding for specific ICC situations … becomes a lever to manipulate the priorities of the prosecutor.”
“Can we honestly say that an unprecedented flow of resources to the prosecutor does not have any bearing on priorities?” Kjell asked.
In effect, instead of the ICC being an impartial forum for justice for the most vulnerable, it risks becoming a pay-to-play tool for the most powerful.
‘Politicization and selectivity’
There are also logistical questions concerning earmarked funding for specific ICC investigations.
Khan, the chronically underfunded ICC’s chief prosecutor, has said that the court will not accept voluntary contributions earmarked specifically for Ukraine, and that “funds received will be deployed based on my assessment of needs across all situations.”
When he announced the opening of the Ukraine investigation, however, Khan made an exceptional request for voluntary contributions to the court outside of its regular budget.
The Coalition for the International Criminal Court, a network of human rights organizations around the globe, said that Khan’s call for “voluntary contributions and gratis personnel when attention is high on one specific situation … risks exacerbating perceptions of politicization of and selectivity in the court’s work.”
The surge in pledges that followed sends “the unfortunate signal that justice for some victims should be prioritized over others, depending on political will, including a willingness to make resources available,” the coalition added.
Meanwhile, federal funding going to the ICC’s general budget would seem to contradict US policy prohibiting assistance to the court except in specific situations.
David J. Scheffer, a senior fellow of the Council on Foreign Relations and former diplomat who signed the Rome Statute on behalf of the US, which never ratified the treaty, has suggested that if the court cannot accept earmarked funds, money authorized by the US government for a specific situation like Ukraine could be used to detail US personnel to work on those cases.
Brenda Hollis, a retired US Air Force colonel, is currently responsible for the Ukraine file at the ICC.
It will not be lost on Russian officials that a former US military adviser is tasked with bringing forth additional charges against senior members of its government, with Khan already obtaining – with lightning speed – arrest warrants for President Vladimir Putin and senior Kremlin official Maria Alekseyevna Lvova-Belova.
Meanwhile, the US has already been involved with building evidence files for Ukrainian authorities independent of the ICC.
Just like the war in Ukraine, US fingerprints are all over the war crimes file against Russia at the ICC while Washington is using everything in its arsenal to preserve Israel’s impunity as the latter goes into settler-colonization overdrive.
How this shapes the future of the world’s supposed court of last resort has implications far beyond Palestine.
Maureen Clare Murphy is senior editor of The Electronic Intifada